Cercone, President Judge, and Price, Van der Voort, Spaeth, Hester and Wieand, JJ.*fn* Hester, J., files a Dissenting Statement. Price, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 278 Pa. Super. Page 223]

Appellant, Cecil Hilliard, was convicted in a jury trial on three counts of the offense of unlawful delivery of a controlled substance. Post-trial motions were summarily dismissed and appellant was sentenced to serve three concurrent terms of imprisonment of five to fifteen years. Appellant appealed to our court and argument was heard on March 14, 1977. The case was then listed for reargument before this court, and heard on March 13, 1979. We vacate the judgments of sentence and remand to the lower court.

The sole contention of appellant on appeal is that his rights to a speedy trial under Pa.R.Crim.P. 1100 were violated. The facts leading to the dispute are as follows: Criminal complaints were filed against appellant on March 20, 1975. Under Pa.R.Crim.P. 1100(a)(2),*fn1 appellant's trial

[ 278 Pa. Super. Page 224]

should have occurred within 180 days of that date, or by September 16, 1975. Arrest warrants were issued for appellant subsequent to March 20. However, when appellant remained unarrested, the Commonwealth filed a "Petition to Submit Bill of Indictment to Grand Jury Without Prior Preliminary Hearing" pursuant to Pa.R.Crim.P. 224.*fn2 The form petition averred that "after a diligent search throughout the Commonwealth of Pennsylvania [appellant] could not be found." The lower court granted this petition on June 19, 1975, and the grand jury indicted appellant on July 8, 1975. Arraignment was scheduled for July 24, 1975 and, when appellant did not appear, a capias was issued for his arrest. On August 1, appellant was arrested and formally arraigned on August 7.

On October 2, 1975, appellant filed a "Motion to Secure a Preliminary Hearing" and a "Motion to Quash the Indictment," the latter of which alleged that Rule 1100 had been violated.*fn3 On October 6 in open court, the attorneys for the appellant and the Commonwealth argued these motions and both were denied. The case proceeded to trial and resulted in the verdicts of guilty.

Although the lower court did not file an opinion in this case, the transcript of defense attorneys' argument prior to

[ 278 Pa. Super. Page 225]

trial on the motion to quash the indictment revealed that there was no evidence other than the record itself introduced on the motions. The Commonwealth said it would stand on the certification by the district attorney that appellant was a fugitive, as established by its Rule 224 petition which was granted on June 19. Defense counsel argued that this fact alone did not establish that the Commonwealth had been duly diligent in attempting to locate appellant. The lower court judge merely relied on the district ...

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